United States v. Plumlee , 385 F. App'x 317 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6223
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MAX ORVEL PLUMLEE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:94-cr-00002-JEB-1; 4:07-cv-00049-RAJ)
Submitted: June 17, 2010 Decided: June 25, 2010
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Max Orvel Plumlee, Appellant Pro Se. Kevin Michael Comstock,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Max Orvel Plumlee seeks to appeal the district court’s
orders treating his self-styled Fed. R. Crim. P. 35(a) motion as
a successive and unauthorized 28 U.S.C.A. § 2255 (West Supp.
2009) motion, and dismissing it on that basis, and declining to
issue a certificate of appealability. The district court’s
order dismissing Plumlee’s § 2255 motion is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,
369 F.3d 363, 369 (4th Cir. 2004). A certificate of
appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006).
When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
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We have independently reviewed the record and conclude
that Plumlee has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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